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Law, Technology and Society Lecture Notes
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Law, Technology and Society | Lecture 1Introduction and Welcome
• Course learning goals
o After successfully completing this course, the students will have knowledge of important trends in
technological developments to the extent that these developments are relevant for regulation and
legislation.
o Discuss the four modalities of regulation, the different regulatory actors and regulatory for a, as well as
the prospects and difficulties of regulation and of and by technology.
o Discuss the mutual shaping of technology and society.
o Explain the tension between fundamental values and new technologies (e.g. the rise of smartphone
applications that invade informational privacy).
o Provide an analysis of a legal and/or ethical issue in one of the domains covered by the course and argue
how regulation has influenced and/or is influenced by technology.
o Provide an analysis of the trends and tendencies of regulation of new technologies (based on the domains
covered by the course) in a chosen nation or region of the world, including a different one from the region
of origin.
o Illustrate and compare the similarities and differences among different regions of the world of regulation
of new technologies.
• Model exam question: Compare the regulatory framework of the xxx technology in xxx (jurisdiction of the lecture)
with the regulatory framework another jurisdiction of your choice.
o “Compare the regulatory framework of the shale gas technology in the European Union with the
regulatory framework of shale gas in another jurisdiction of your choice.”
, Law, Technology and Society | Lecture 2
(disruptive) Technology and fundamental values as (failing) guides
• Lecture’s learning goals
o Describe the disruptive role technology plays in modern society and how this affects core legal concepts;
o Describe fundamental values that may exist in a given society, such as liberty, privacy, security, safety,
legitimacy, markets, competition;
o Explain how the fundamental values of a society impact the way in which new technologies are developed
as well as regulated;
o Explain how new technologies may come into existence in response to concerns relating to one of these
fundamental values, whilst at the same endangering the attainment of other fundamental values;
o Describe the balancing act that regulators need to undertake in order to achieve an outcome in which
these conflicting values and interests are adequately reflected.
• Facial recognition
o Examples
▪ Images of people in a database → figure out whether an individual is in your database
▪ Image of your face → compares to your face when you want to unlock it (e.g. phone)
▪ iPhoto 2011 → tagging images of people in the phone automatically
o What does it do? Assumption: technological process creates benefits and raises (new) issues
o Deckard Stance position: (replicants are humanized robots) “Replicants are like any other machine –
they’re either a benefit or a hazard. If they’re a benefit, it’s not my problem.”
• Law and technology: why?
o Global law is not a classic legal study, it is a law in context study.
o We are technology – classical Clark and Fourastié model
▪ 4(5) Sector model of economy:
• Extraction of raw materials (primary)
• Manufacturing (secondary)
• Services (tertiary)
• Information services (quaternary)
• Non-profit services (quinary)
▪ Phases
• Traditional civilizations
o Primary 70%, secondary 20%, tertiary 10%
• Transitional period (industrialization)
o Primary 50%, secondary 30%, tertiary 20%
• Tertiary civilization
o Primary 10%, secondary 20%, tertiary 70%
▪ Financial, state, services
• Four major changes
o From atoms to bits: from trading tangible goods to trading in information, stock etc.
▪ Computers are built using transistors (chips) → the amount of information you can put in a
certain volume has increased exponentially. This has made all sorts of things possible that were
not possible decades ago.
▪ The price of gigabytes went down exponentially → nobody throws anything away anymore
o Data: we live in a data economy
▪ E.g. Facebook makes money through advertisements and selling data
▪ Spotify: you pay for a subscription. If you stop paying, there is no more music (information)
, ▪ Control of things to control of information changes
• Production costs
• Reproducibility (without quality loss)
• Rivalrous v non-rivalrous
• From ownership to use rights
• Transition from B&M to services is hard for industry
▪ Economic effects visible in e.g. profits of companies (Exxon v Apple, Walmart v Amazon)
o Acceleration
o Convergence of:
▪ Nanotechnology, Biotech, ICT, Cognitive science
• Principle: does not permeate skin (blood-brain) barrier, however, nano stuff does, but it
still falls under regulation
• CRSPR DNA technology → No separation between biology and technology, they are
merging
• Think of cochlear implants
• Major trends
o We move from atoms to bits
o Data is the new oil
o Acceleration of technology development and adoption
o Convergence of technologies
• Why focus on technology?
o Pervasive
o Developing rapidly
o Significant impact on individuals and society
o Seems autonomous
o Seems objective, but it not neutral
o Complex and difficult to understand
o Performs miracles
o Raises (legal) uncertainty (and fear)
• Technology
o ‘The broad range of tools and crafts that people use to change or adapt to their environment’
o ‘… a broad concept that deals with an animal species’ usage and knowledge of tools and crafts, and how it
affects an animal species’ ability to control and adapt
its environment.’
o Information & Communication technologies
o Socio-technical space
o Expectations change + technologies develop = plan
ahead
o Should it be regulated ? On the basis of what?
• What are values and how to cope with them?
o What is important, what is not?
o Technology: ‘The broad range of tools and crafts that people use to change or adapt to their
environment.’
o Regulation: ‘the sustained and focused attempt to alter the behavior of others according to standards or
goals with the intention of producing a broadly identified outcome or outcomes, which may involve
mechanisms of standard-setting, information-gathering and behavior-modification.
, o Normative outlook: ‘a coherent framework of normative notions, selected from the many and competing
normative standards by which individuals and communities determine how best to live their lives.’
▪ Norm: Collective evaluation of behavior in terms of what it ought to be; a collective expectation
as to what behavior will be; and/or particular reactions to behavior, including attempts to apply
sanctions or otherwise induce a particular kind of conduct.
o Value: ‘a conception, explicit or implicit, distinctive of an individual or characteristics of a group, of the
desirable, which influences the selection from available modes, means, and ends of action.’
• International & European fundamental rights protection
o EU: Multi-level system of protection: the 28 MS of the EU have to respect and protect fundamental rights
enshrined in:
▪ Their national constitutions
▪ The European Convention on Human Rights
▪ The Charter of Fundamental Rights
• ‘when implementing EU law’
o Terminology
▪ Constitutional rights – (written) constitution
▪ Human rights – UDHR, ECHR
▪ Fundamental rights – US doctrine
o Rights regarding: the public interest; innovation; health; rights to privacy; data protection; non-
discrimination; freedom of expression; security; autonomy; self-development; property; identity
o Fundamental are (in US view) right to:
▪ Keep and bear arms; freedom of movement within the country; property; marry the person of
any race (not gender) of one’s choosing; procreate irrespective of marital status or other
classifications; freedom of association; freedom of speech; equal protection under the law;
freedom of thought; vote in general election; freedom of contract by parties with proportional
bargaining power; privacy
• Freedom of expression (Dutch example)
o Art. 7 Gw: “1. No one shall require prior permission to publish thoughts or opinions through the press,
without prejudice to the responsibility of every person under the law. 2. Rules concerning radio and
television shall be laid down by Act of Parliament. There shall be no prior supervision of the content of a
radio or television broadcast. 3. No one shall be required to submit thoughts or opinions for prior
approval in order to disseminate them by means other than those mentioned in the preceding
paragraphs, without prejudice to the responsibility of every person under the law. The holding of
performances open to persons younger than sixteen years of age may be regulated by Act of Parliament
in order to protect good morals. 4. The preceding paragraphs do not apply to commercial advertising.”
• How to cope with change
o How to keep constitution alive
▪ Be smart when formulating constitutional rights
• Swedish constitution uses enumerations with open- ended formulations: “protection
against the examinations of mail or other confidential correspondence, and against
eavesdropping and recording telephone conversations or other confidential
communications”
• Achieves both legal certainty for existing technologies, and scope for including (similar)
future technologies
▪ Allow constitutional review by the courts
• To keep interpretation up-to-date as technologies develop
• Hence, abolish art. 120 Gw (prohibition of constitutional review)
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